YU CHUN KIT v. WONG WING YAU (THE BANKRUPT) FORMERLY t/a VIEWBOND CARGO SERVICE CO AND ANOTHER

DCEC 1787/2015

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1787 OF 2015

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J U D G M E N T

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1.  The Applicant was an employee of the 1^st Respondent (“R1”). It is his:

i) application for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for his personal injury sustained in an accident whilst at work; and

ii) appeal under section 18 of the ECO against assessment of his permanent loss of earning capacity given in a review certificate (“Form 9”) by the Ordinary Assessment Board (“OAB”).

Brief Background

2.  The Applicant, born in August 1994, was employed by R1 as delivery worker as from early December 2013. There was no dispute that he was a casual worker and was employed on an as-required basis[1]. Unfortunately, he met a traffic accident on 23 January 2014 while at work travelling on board a goods vehicle driven by R1. The said vehicle rammed into the rear of another container truck which was forced to stop on a highway as a result of another container truck in the front breaking down. He was injured and was hospitalized. At the time of the accident he was only 19. He is now aged 22. There is no dispute that the accident arose out of and in the course of his employment.

3.  After the accident the Applicant was immediately admitted to the Prince of Wales Hospital (“PWH”) and was hospitalized for slightly over a month. He was discharged on 28 February 2014.

4.  Thereafter the Applicant consulted 2 private medical practitioners who granted him sick leave for a long period of time, though with some breaks, up until 16 June 2016.

5.  There is no dispute that the Applicant earned $450 a day at the time of the accident. However, there is dispute as to the Applicant’s actual number of working days for the month of December 2013 for the purpose of calculating his earning which in turn is essential to computing his compensation under the ECO. R1 said that the Applicant only worked 12 days in December 2013, and his earning should be $5,400 per month[2]. Periodical payment was paid to the Applicant based on this rate until R1 was adjudged bankrupt (see below). However, the Applicant said that based on his own record, he worked 18 days in December 2013, and therefore the compensation should be based on $8,100 per month[3].

6.  R1 was adjudged bankrupt on 16 September 2014 by the Court of First Instance (“CFI”). On 25 August 2015, the Applicant issued proceedings against R1 for employees’ compensation under the ECO. On 24 February 2016, leave was obtained by the Applicant from the CFI to continue with the present proceedings. On 18 March 2016, HHJ Levy entered judgment by consent against R1 on liability with compensation to be assessed.

7.  It was admitted by R1 that he had not taken out any insurance policy under the ECO covering his liability to the Applicant. The Employees Compensation Assistance Fund Board (“the Board”), apparently having an interest in the outcome of the assessment, applied to be joined as a party and participate in the assessment. On 27 March 2017, leave was granted by Deputy District Judge SH Lee for the Board to join in as the 2^nd Respondent (“R2”).

The Disputes

8.  Prior to the commencement of the assessment, apparently the following 3 areas are in dispute:

i) The amount of the Applicant’s earning for the month of December 2013 for the purpose of computing compensation under the ECO;

ii) The percentage of permanent loss of earning capacity; and

iii) The amount of periodical payment and medical expenses already paid and received by the Applicant for which the Applicant agrees to give credit.

9.  There is one preliminary procedural matter popping up prior to the assessment hearing, and is this. R2 intended to call the R1 testifying at the present assessment hearing. This was opposed by the Applicant. So far as can be discerned from the submission of Mr Foster Yim, counsel for the Applicant, he took the view that upon the making of a bankruptcy order, all properties of the bankrupt should be vested in the Official Receiver, or the trustee-in-bankruptcy if a person other than the Official Receiver is appointed as the trustee. He submitted, unless R1 had obtained prior permission of the trustee (and there is none), R1 could not defend the proceedings. His argument further developed that as a consequence, his witness statement and/or other evidence is inadmissible by operation of law.

10.  At the hearing, Mr Yim initially made a partial concession that a bankrupt could give evidence if subpoenaed. Later he confirmed, and this Court considers correctly, that he would no longer take issue on this.

11.  I share Mr Phang’s submission that the aforesaid argument is utterly misconceived and is, as a matter of law, wrong. While all of the property of the bankrupt are vested in the trustee-in-bankruptcy, his person is not. He is a free person, and is not prohibited by law to testify as a factual witness before any court of law. Mr Phang has helpfully referred this Court to the following passage of Lord Denning MR in Harmony Shipping Co. S.A. v Saudi Europe Line Ltd[4] at 1384G-H, which I consider squarely on the point:

“So far as witnesses of fact are concerned, the law is plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from calling him to give evidence or from issuing him with a subpoena.” (Emphasis added)

12.  At the commencement of the assessment, counsel also agreed the amount that the Applicant had received from R1 being $27,440 as stated by the Applicant, instead of $40,000 as asserted by R1. Accordingly, the issue referred to in paragraph 8(iii) above has gone.

13.  However, another issue arose. It is the Applicant’s case that he has incurred a total of $56,380 as his medical expenses. Initially R2 accepted this was the amount for which R1 should be liable in full under the ECO. Upon further query of this Court R2 indicated the Board was only prepared to pay the amount actually incurred, or up to the maximum prescribed under the ECO, whichever is the lower.

14.  Accordingly, the following three issues fall to be determined in this assessment:

i) The Applicant’s earning for the month of December 2013;

ii) The percentage of permanent loss of earning capacity; and

iii) The amount of medical expenses for which R1 is liable under the ECO.

The Applicant’s Earning for the Month of December 2013

15.  Section 11(1) of the ECO provides that the monthly earnings for the purpose of calculating employees’ compensation under the ECO shall be the higher of (i) the earnings for the month immediately preceding the accident, or (ii) the average of his earnings over his previous 12 months or lesser period of employment. S.11(2) of the ECO provides, where by reason of the shortness of one’s employment with his employer prior to injury or of the causal nature of one’s employment such that it will be impracticable to compute his earnings for ECO purpose, his earning can be computed by reference to that of a person of similar earning capacity doing the same work for the same employer.

16.  It appears that both counsel are agreeable that s.11(1) is applicable for the present case and it is unnecessary to invoke s.11(2).

17.  The Applicant testified that he started working for R1 as from 2 December 2013 on a casual basis at the rate of $450 per day. He said his last working day for the month of December 2013 was the last day of the month. For December 2013, he worked a total of 18 days. Accordingly, $8,100 per month[5] should be adopted for the purpose the ECO.

18.  In the Amended Application amended on 29 July 2016 the Applicant stated he worked about 20 days in December 2013[6]. He stated in his witness statement dated 29 November 2016 that he worked 18 days for that month[7]. He particularly drew up a hand-written list[8]. However, he did not appear to the Court to have a good memory of almost everything at the hearing. His testimony was totally unsatisfactory. Being at the age of 22 at trial, he even could not tell this Court some of his working experience from his relatively short working life. Some of the jobs which he had stated in his statement could not be recalled by him. His answers to many questions were simply “I could not recall”. He confirmed the list of earning compiled by him[9] not being based on any contemporaneous records made by him, contrary to what had apparently been suggested in his witness statement. At trial, he said it was prepared only a year ago but he could not tell how then he could come up with the said list.

19.  At the material time R1 was carrying on a small business for transportation of goods. After securing his orders from customers early every morning, if the orders were big enough as to justify a helping hand he would call the Applicant who was a friend of his son living in the same housing estate as his. So the Applicant worked for him on an as-required basis. He would then pick up the Applicant for work at the estate where the Applicant lived.

20.  It is R1’s case that the Applicant’s earning was based on his contemporaneous records. He kept a record book and would wrote down particulars of orders he took every day for charging his customers and tax purpose. At the same time, if he had paid the Applicant he would wrote down “魚旦 (transliteration “Yu Dan” or meaning “fish ball”) $450” under the particular date. He said the Applicant had a nickname called “Yu Dan” and that was why he wrote that way. The Applicant, however, denied he had such nickname.

21.  The Court was taken through R1’s records[10]. The original record book was also produced for inspection by both counsel. It was found out, instead of 12 days, the Applicant worked 13 days in December 2013. R1 admitted he had left out the entry marked on 6 December 2013[11], a copy of the relevant page had in fact been exhibited[12]. He explained that the entry escaped his attention and admitted he had made a mistake. He paid the periodical payment to the Applicant based on the mistaken rate of $5,400 per month. He was prepared to accept that the Applicant worked 13 working days for December 2013 and the monthly earning should be $5,850 instead.

22.  The entries of “魚旦$450” being made contemporaneously by R1 were challenged by Mr Yim. R1 was heavily cross-examined, particularly on the colour of ink for jotting down “魚旦 $450”, which was different from his other scribbles of the day. This Court accepted R1’s explanation that he would use whatever colour of ball pen available when he recorded payment, which was usually made at times different from when he wrote down his orders.

23.  Further R1 explained that when he stated he had paid $40,000 to the Applicant after the accident, he had not with him the original records as they had all been submitted to the Court. He therefore told the total payment according to his memory. Now that he had an opportunity to go through the documents. He accepted the figures asserted by the Applicant.

24.  This Court considered R1 unshaken despite the cross-examination. He is found to be a simple and honest witness. On a balance this Court prefers his evidence to that of the Applicant on earnings.

25.  This Court accepts the Applicant’s earning for the month of December 2013 being $5,850 per month[13]. It will be adopted for the purpose of calculating the Applicant’s compensation under the ECO.

Permanent Loss of Earning Capacity

26.  The Applicant was assessed by the OAB on 11 May 2016 to have suffered from 12% loss of permanent earning capacity. A Form 7 was accordingly issued on 25 May 2016. He appealed against the assessment, which was reviewed by the OAB on 31 August 2016. The permanent loss of earning capacity was, however, reduced to 8%. A Form 9 was issued on 14 September 2016. He lodged an appeal under s.18(1) of the ECO.

27.  Section 18(3) of the ECO empowers that on an appeal, this Court can confirm, reverse, vary or substitute the OAB’s assessment with the Court’s own assessment. The burden is on the Applicant to demonstrate that the Form 9 is incorrect. The Applicant filed a medical report of Dr Tio Man Kwun Peter (“Dr Tio”), who concluded in his only report dated 25 November 2016, inter alia, the following[14]:

“ 37. In view of his job nature and injuries sustained, those sick leaves given should be considered to be reasonable and appropriate.

38. For the parties’ reference, the degree of whole person impairment and LOEC [i.e. Loss of Earning Capacity] is considered to be 15%.”

28.  Pursuant to previous case management directions, Dr Tio’s medical report was to be admitted as evidence without calling Dr Tio attending court to testify. As such Dr Tio did not attend the assessment hearing.

29.  The OAB wrote no report for reference of anyone except coming up with its own conclusion as recorded in Form 7 and Form 9. There is no evidence as to what documents and/or materials it has considered or not considered or rejected. Neither is there any suggestion that detailed records of the assessment proceedings are kept.  Although the application to this Court under s.18 of the ECO is couched in term of an appeal, in reality it is not. The principles for doing the s.18 appeal under the ECO as distilled from a number of authorities can broadly be summarized as follows:

i) The Court hearing the appeal has to form its own view afresh by reference to all the evidence, in particular the medical evidence, in arriving at its own conclusion as to the permanent loss of earning capacity;

ii) Usually medical experts are called to give opinion on the effect of the injuries on the injured, and his physical disability. However, they are not experts of the employment market or employment aspects as well as his earning capacity. The Court should be reminded that it is the judges, not the medical experts, that are to decide on the matter;

iii) The Court has to note whether there are special circumstances showing the actual loss of earning capacity being greater than that assessed by the Board. (See: Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd[15]; Lau Tat Wai v a Kim Chuen (previously trading as Hop Tai Co.[16], Chu Chin Yiau v Ray On Construction Co Ltd[17]; Tang Shu Tsan v Wealthy Construction Co Ltd[18]; Yip Koon Man v Yuen Long Merchants Association Secondary School[19])

30.  Mr Yim, counsel for the Applicant, made neither submission as to the approach which this Court should adopt in the s.18 appeal, nor why 15% being the permanent loss of earning capacity proposed by Dr Tio should be preferred to 12% or 8%. Mr Phang invited this Court to accept 8%.

31.  There is no dispute that the Applicant suffered multiple injuries after the accident. He was trapped after the collision and had to be extricated by firemen. As a result of the accident, he suffered injuries to his knees, lower limbs with tissue and muscular tear. His right hip was dislocated with fractured right femoral head and posterior lip of right acetabulum. The conditions were properly managed medically after the accident. He was hospitalized for 37 days and was prescribed physiotherapy courses after discharge. He was given a total of 491 days sick leave[20]. In both the Form 7 and Form 9, he was described to have suffered from:

“Multiple injuries resulting in (i) right hip pain and stiffness; and (ii) right knee pain and laxity”

32.  From what have been exhibited in Dr Tio’s report, this Court believes that Dr Tio has considered all the medical records obtainable from public hospitals treating the Applicant. Dr Tio basically recorded the following under the head of “Present Complaints” in his report[21]:

i) Right hip pain: on and off attacks, a few times a week lasting 15 minutes with pain severity; 5-6/10, and medication is required. Such pain will be aggravated on chance of weather, prolonged walking for half day or jogging for 10 minutes. An overall improvement of 70%;

ii) Right knee weakness: it is aggravated after walking up 2 flights of stairs, after walking for 4-5 hours would lead to soreness and weakness. Occasional pain over anteromedial aspect. On and off attacks about 3-4 times a week lasting 10 minutes. It will also aggravate by change of weather and movement.

iii) Low back pain: said first started immediately after injury. Pain severity: VAS 4-5/10. On and off attacks about 1-2 times a day lasting 10 minutes. It is aggravated by change of weather and movement. All overall improvement of 50%;

iv) He is independent with his activities of daily living. He has difficulty in squatting and lifting weight in excess of 5 kg. If he has to lift 5 kg and walk 10 minutes, he will have right hip and right knee pain. It will therefore difficult to resume his original duty because of low back pain, right knee pain and right hip pain. He future work plan is to find work that does not require prolonged walking or standing.

33.  It is noted that back pain was not recorded in Form 7 and Form 9. Dr Tio considered that although as revealed from medical record, the Applicant did not appear to have complained about his back pain, he was of the view that medically, it is not impossible for the Applicant to have developed low back pain after the injury. In [26] of his report, Dr Tio has this to say:

“According to Mr Yu [the Applicant], he also had low back pain immediately after the accident. However, there was no reference of any back pain or injury in the available reports and records. Either his back pain was mild initially that was masked by the more severe right hip and right knee pain or it was secondary to the poor weight bearing status of his right hip and knee as a result of the captioned accident. It is not uncommon for patients with hip or knee problem to present with secondary lower back pain.”

34.  Apart from considering the complaint of low back pain compatible with his injury, Dr Tio also agreed that there were:

i) laxity of the right knee and with posterior sagging[22];

ii) range of movement slightly reduced in flexion[23];

iii) slight wasting of gluteal muscle and tenderness over anterior and lateral aspect in the right hip[24];

iv) right hip’s range of motion slightly reduced[25];

v) degeneration of the right hip with narrowing of joint space[26];

vi) right hip and right knee would have early degeneration in the future in which his right hip has already got moderate to severe arthritis[27]; and

vii) the prognosis is considered fair but a generally slowly downhill course with residual pain; stiffness and weakness[28].

35.  Dr Tio gives his opinion on the abilities of the Applicant resuming his present work in [35] of his report:

“For his current condition, he should be able to resume his pre-injury job as delivery worker. However reduction in work efficiency is expected due to right hip and right knee pain, weakness and stiffness especially in prolonged standing or walking. His endurance in heavy lifting and carrying will be limited. He will need intermittent breaks of 15 minutes after each 2 hours’ work and seek help from co-workers or make use of appropriate tool like a trolley or cart in heavily delivery. He should avoid jumping from lorry to ground.”

36.  I agree with Dr Tio’s assessment of the impact of the Applicant’s physical disabilities on his work activities. However, with the greatest respect I disagree with him on his conclusion that the Applicant can resume the work as a delivery worker.

37.  Hong Kong is a highly competitive society. Works are expected to be busy. Not every employer doing delivery business will equip their trucks with tail lifts; nor providing forklifts for their delivery, like what R1 did. There is also no guarantee either that the Applicant will be working with co-workers who can offer a helping hand when he needs a break in order to regain vigour. Mild exertion, which is a very low threshold of 5 kg for the Applicant[29] (which this Court accepts being the Applicant’s situation post-accident), can aggravate the Applicant’s pain in his knee, hip and back. Although the Applicant used to spend about one-third of his working time commuting when working for R1, it is not a norm for delivery workers in the logistic trade. Further, this Court wonders how a person who has difficulty in lifting 5 kg or walking for 10 minutes can cope with the duties of a delivery man when carrying goods of certain weight being unavoidable. Accordingly, the Applicant’s employment prospect as a delivery worker will be, in the Court’s judgment, very limited, if not non-existent. It is particularly the case when Dr Tio opined his condition will be gradually going downhill with residual pain, stiffness and weakness. Even if he can work as delivery worker now, his choices will be greatly restricted to one extreme of the spectrum where duties are light, and all weight lifting and carrying will be aided by machine or tool. In any event, it will only last for a very short period of his working life. 

38.  The Applicant only received education up to Form 4. He is young (aged 22 as at the date of trial). Prior to the accident he could lift weight of up to 100 pounds. He used to enjoy good health and played sports such as badminton, soccer during some of his leisure time[30]. Prior to being a delivery worker, he had been a waiter, clerk for estate agents, and a shampoo boy in a saloon. After the accident, he could not even work as a waiter as the nature of the work requires standing for a long. He testified that he no longer wanted to work as a delivery worker. He now wants to be a sale of video games in Golden Shopping Centre[31].

39.  In the Court’s judgment, the Applicant can only take up jobs which do not require physical exertion, moving around or standing for a long time. Given his education background, he is suitable to take up jobs such as a salesman in a work place which provides seats for staffs or for employers who are more carefree or who do not mind their sales often sitting down, caretaker at front desk of building or junior clerk or works of similar nature. It is noted that the Applicant is young (aged 22 now). It should have been his prime time taking up jobs with certain degrees of exertion which enables him to earn more compared with his other job options. The injury obviously has greatly limited his job opportunities.

40.  The OAB has not considered the Applicant’s back pain. Dr Tio, while acknowledged that he has back pain, pitched the permanent loss of earning capacity at 15% because he came to a view that the Applicant could resume work as a delivery worker. His view in this respect is not shared by this Court.  In the Court’s judgment, it would be fair to assess the Applicant to have suffered from a 25% permanent loss of earning capacity.

Medical Expenses

41.  It is common ground of counsel the total medical expenses actually incurred by the Applicant was $56,380 which is the aggregate of all the bills and receipts produced by the Applicant[32]. This Court comes to the same figure according to those documents[33].

42.  The payment of medical expenses by an employer to his injured employee is governed by s.10A and the Third Schedule of the ECO. Put very briefly, the maximum expenses which an employee is entitled for his medical treatment is the lesser of the actual amount of expenses incurred, or the daily rate of $200 (for either in-patient or out-patient treatment), or a daily maximum of $280 if the employee receives both in-patient and out-patient treatment on any day.

43.  Mr Phang came to a sum of $16,780 while Mr Yim came to a figure of $15,260. There is a discrepancy of $1,440. The breakdown by them are as follows:

Mr Yim’s case Mr Phang’s case i) PWH’s in-patient (37 days) $4,460 $3,700 ii) PWH’s out-patient (12 attendances)   $13,080 iii) Dr Lau Hoi Kuen (4 attendances) $800 iv) Dr Cheng Hing Fai (1 attendance) $200 v)  HK Spinal and Sport Theory Centre $9,600 v) HK Health Check & Medical Diagnostic Group Limited $200   Total: $15,260 $16,780

44.  No one sees fit to address the difference. In the Court’s judgment, the following medical expenses should be allowed to the Applicant under the ECO:

i) the total expenses of $4,460 for his in-patient and out-patient treatment received at PWH, i.e. his actual expenses incurred;

ii) $1,000 for the 5 consultations with Dr Lau and Dr Cheng, i.e. $200 for each;

iii) $9,600 for the 48 sessions of physiotherapy at the HK Spinal and Sports Therapy Centre; and

iv) For the diagnostic treatment received at the HK Health Check & Medical Diagnostic Group Limited, it needs some explanation. It is noted that it took place on 18 February 2014 when the Applicant was hospitalized for which $100 had already been allowed. The Applicant was only entitled to $180 for this treatment as the maximum allowable is only $280 per day.

45.  The aggregate of all heads referred to in the preceding paragraph allowed under the s.10A of the ECO is $15,240[34].

The Total Amount of EC to the Applicant

46.  The net amount of EC payable to the Applicant under the ECO is therefore:

i) Section 9: $5,850 x 25% x 96 = $140,400;

ii) Section 10: $5,850 x 4/5 x 491/30 = $76,596;

iii) Section 10A: $15,240

iv) LESS amount received: ($27,440)

v) Net Amount: $204,796

Judgment Against Whom

47.  The Application for compensation under the ECO was made on 27 August 2015[35]. Despite the bankruptcy order made on 16 September 2014, leave was granted by the CFI for the Applicant to proceed against R1 on 24 February 2016 subject to, inter alia, the usual condition that no order or judgment obtained should be enforced against the estate of R1 without leave of the CFI in its bankruptcy jurisdiction[36]. Implicit in the leave so granted is that judgment can be entered against R1. It is only when it comes to enforcement that further leave needs be sought. As a matter of fact, interlocutory judgment was entered with consent of R1 against him on 18 March 2016 with quantum to be assessed. This assessment is conducted pursuant to such interlocutory judgment against R1, and not R2.

48.  It appears that Mr Yim has somehow in its supplemental opening submission suggested that by virtue of ss.25 and 25A of the Employees Compensation Assistance Ordinance, Cap 365 (“ECAO”) R2’s is “as if” the Applicant’s employer[37]. Question of whether judgment should be entered direct against R2 appears to be an issue, and raised at the conclusion of the assessment. However, it was not pursued by Mr Yim as evident in his closing submission. According to Mr Yim’s closing submission, the only question is whether costs should be awarded directly against R2. Accordingly, it will be unnecessary for this Court to consider whether to enter judgment against R2 concurrently with R1.

49.  Even if this issue were to be pursued by Mr Yim this Court would no doubt have refused to make such order. As stated in the preceding paragraph, this is not a case in which the Applicant issued proceedings directly against the Board under s. 25 of the ECAO as if the Board is the employer. The Applicant chose to pursue after R1 who, though insolvent, could be identified, found and served. It is a case in which the Board joined in as intervener by reason of s.25A(b) of ECAO on the ground R1 was insolvent and took out no policy of insurance covering his liability under the ECO[38]. The Board considers, and this Court accepts, that it has an interest in the outcome of the assessment because whatever quantum that may be assessed against R1 is likely to be met by the Board. It is noted that the Board did not intervene by virtue of s.25A(a) which provides that it takes over the defence as if it were the employer. Even if it were the case, judgment is still to be entered against R1 in that scenario because the appearance would have been entered into by R2 for R1. As said above, it is not a case in which the Applicant issued proceedings against the Board direct under s.25(4) of the ECAO as if the Board were the employer. If that is the case judgment will be entered against the Board. By reason of Tu Zhiqiang v Hap Sang Co (a firm)[39], particularly [27] to [30], [41], [42], [48] to [50] thereof, no judgment should be entered against R2. Judgment should be entered against R1. The Applicant can then seek payment from the Board under s.16 of the ECAO.

Costs Against Whom

50.  This Court considers that once the Board has joined in the proceedings, it would no doubt has an exposure to costs vis-a-vis the applicant: see Hussain Kamran v Khan, Amar formerly t/a Three Star Recycling Co (a firm) and Another[40]. However we are of the view that in the absence of unreasonable conduct by the Board, it should not be visited with an adverse costs order: see Chan King Por v Wong Chun Fai[41].

51.  Section 23(1) of the ECAO provides that when the Board determines an application made to it under s.16 (i.e. the application which the Applicant herein is likely to be making to the Board), the Board shall agree to pay the following on the top of costs of the application:

“an amount equal to any costs payable to the applicant pursuant to an order of a court for costs against the employer or the employer’s insurer in proceedings claiming the compensation.

52.  This Court does not find the intervention of the Board and its conduct of the proceedings herein unreasonable. It is only exercising its statutory powers conferred upon it to protect the Fund. In fact, in the present assessment, with the assistance of the Board this Court basically rules against the Applicant on the question of earning for the purpose of the EC. In view of this Court’s conclusion above regarding against whom judgment should be entered, this Court considers it fair and just that only R1 should be ordered to pay the Applicant’s costs herein, no matter as against R1 and R2, and this Court now so orders.

Disposition

53.  By reason of the above, this Court now makes the following orders:

i) The Applicant’s earning for the purpose of his compensation under the ECO is $5,850 per month;

ii) The Applicant’s permanent loss of earning capacity is 25%; and

iii) The Applicant’s compensation under the ECO assessed against R1, after taking into account of payments he has received from him, is $204,796, the breakdown of which is set out in [46] above.

54.  Regarding costs, there be order nisi that (i) R1 do pay the Applicant’s costs of the proceedings herein, no matter in relation to R1 and R2, with certificate for counsel, to be taxed if not agreed, and (ii) there be no order as to costs between the Applicant and R2. The said orders nisi will be made absolute if no application is made to have them varied in 14 days.